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Harding v. Conlon

Supreme Court of New York, Appellate Division

November 10, 1911

EVA K. CONLON, Respondent, Impleaded with Others, Defendants. FREDERIC J. SWIFT, Appellant.

APPEAL by Frederic J. Swift from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, directing him to forthwith deliver to J.

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Noble Emley, Esq., the present attorney for the defendant Conlon, 'all papers, documents, letters and exhibits and all papers in any way relating to this action' now in his hands, and also, as stated in the notice of appeal, from an order entered in said clerk's office on the 21st day of September, 1911, denying the appellant's motion for a reargument.


Frederic J. Swift, appellant, in person.

Jay Noble Emley, for the respondent.


The order denying the motion for reargument is not appealable, and the appeal therefrom is, therefore, dismissed, but without costs.

The purpose of this action was to procure the cancellation of a deed, and the record thereof, to the premises known as 121 Worth street, in the city of New York, executed by the husband of the defendant Conlon to her, on the ground that it was a forgery. She appeared in the action by Marsh & Bennett, but the date of their appearance for her is not given. It appears, however, that the action was pending in the month of April, 1910, for an agreement in writing, recited to have been made on the blank day of April of that year, was executed by the defendant Conlon and by Marsh, one of the firm of her attorneys, who, it was recited, had been retained as her attorney to defend the action, 'and to conduct such other proceedings in connection therewith as he may deem necessary or advisable to protect her and to secure to her her rights and title in and to' the premises, and delivered to the appellant, whereby the appellant was retained 'to co-operate' with said Marsh 'to a final termination' in the defense of this action, and in the prosecution of an action then pending, which had been brought by the defendant Conlon against the plaintiff for ejectment with respect to the same premises, and to recover rent therefor, and in making a motion in another action entitled Jones v. Kelly, which it was deemed might have some effect on the defendant Conlon's rights in the premises. The agreement recites that the defendant Conlon had theretofore agreed to pay said Marsh the sum of $4,000 and the

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costs of the action, in the event that the deed to her of the premises should be finally sustained, and twenty-five per cent of any back rents recovered in the ejectment action, together with the costs thereof. The agreement also recites that Marsh agrees to assign and does thereby assign to the appellant, of the $4,000 which he was to receive under the agreement, the sum of $3,000, and of the twenty-five per cent of the rents collected twenty per cent thereof and one-half of said costs. The defendant Conlon therein agreed to make payments of the said $4,000 and twenty-five per cent of the rents collected or received in settlement of said litigations, and the costs, to the appellant and said Marsh in said proportions, and 'to pay all necessary expenses of said actions and proceedings.' The appellant did not sign this agreement, but according to his affidavit it was negotiated at the instance of the defendant Conlon, who applied to and retained him personally, and that, as he did not desire to oust said Marsh as attorney of record, the agreement was made and he has acted under it ever since in the conduct of the litigations to which it refers, apparently performing duties of both attorney and counsel, and this would seem to be borne out by the records on the various appeals to this court therein. It is not controverted that the appellant appeared for the defendant Conlon and with her knowledge and consent in said litigations; but it is contended that he refused to accept said agreement, and that his appearance was merely in the capacity of counsel under a retainer from said Marsh. It is conceded that the appellant, in the course of his employment in connection with said litigations, incurred various disbursements, and he has been paid on account thereof by the defendant Conlon the sum of about $2,200, and that in the course of said employment there came into his custody and possession certain papers, in addition to the pleadings in this action, relating to this action, consisting of exhibits and other papers and documents which, by the order from which the appeal has been taken, he has been directed to turn over to her present attorney of record, and a stay of proceedings thereunder having been denied we were informed on the argument that the order has been complied with.

On the 9th day of June, 1911, an order was entered on consent

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of the defendant Conlon and said Marsh & Bennett substituting Jay Noble Emley as attorney of record for the defendant Conlon. The moving papers show that at the time of this substitution Marsh agreed to deliver all the papers in the action to said Emley, but that this was not done and that said papers were in the possession of the appellant, who refused to deliver them. An affidavit of the defendant Conlon, constituting one of the moving papers, states that she has paid the appellant 'in full for all disbursements which he has made in this action with her knowledge,' and that he had refused to prosecute an appeal from the judgment rendered against her in this action unless he was secured or paid the sum of 'about Five thousand dollars,' and that he stated that he did not wish to represent her on said appeal. The appellant, in his affidavit read in opposition to the motion, denies that he refused to represent her on the appeal, or that he demanded security for his services, and denies that she has paid him in full for his disbursements incurred by her authority; and it is further stated therein that only $500 of the $2,200 paid has been on account of this litigation, and that this payment was on account of a charge of $900 for services of a handwriting expert employed by him with her knowledge, whose services were used for her benefit in the action, and $81.82 for disbursements necessarily incurred by said expert. The appellant, in a letter annexed to his affidavit, shows that he claims to be obligated to said expert for the balance of said bill, but such liability on his part is not satisfactorily shown. Another item of disbursements alleged to have been incurred by the appellant in this action is $500 paid to one Palmer as counsel for assisting in the trial of the action, of whose employment the defendant Conlon was notified in advance. It may be inferred that she made no ...

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